Madras High Court
K.Panneerselvam vs S. Ambika on 19 January, 2021
CMA No. 930/2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.01.2021
CORAM:
The Honourable Mr. Justice R. Subbiah
and
The Honourable Mr. Justice Sathi Kumar Sukumara Kurup
Civil Miscellaneous Appeal No. 930 of 2020
K.Panneerselvam .. Appellant
Versus
1.S. Ambika
2.The Divisional Manager,
Reliance General Insurance Co. Ltd.,
Rays Towers, 2nd Floor,
No.2054, 2nd Avenue, GRT Jewellery,
Anna Nagar, Chennai – 600040.
Now at
No.6, Haddows Road, 6th Floort,
Nungambakkam, Chennai – 34 ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988 to enhance the compensation in M.C.O.P.No.3591 of 2015 on the
file of the Motor Accident Claims Tribunal/ Special Sub-Ordinate Court,
Cuddalore.
For Appellants : Ms. Ramya Rao
For Respondents : Mrs. R.Nandhini for R1
Mrs. C. Bhuvana Sundari for R2
https://www.mhc.tn.gov.in/judis/
1/14
CMA No. 930/2020
JUDGMENT
[Judgment of the Court was delivered by
Sathi Kumar Sukumara Kurup, J)
This Civil Miscellaneous Appeal is filed by the claimant in MCOP No.
3591 of 2015 on the file of Motor Accident Claims Tribunal, Special
Subordinate Court, at Cuddalore, seeking enhancement of the compensation
amount.
2. The claim petition in MCOP No. 3591 of 2015 was filed by the
claimant seeking compensation of Rs.75 lakhs for the injuries sustained by
him in a road accident on 01.06.2015 when he was travelling in a Van along
with other occupants. After adjudication of the rival claim, the Tribunal held
that the Van in which the claimant and others were travelling had hit a
stationary lorry owned by the first respondent and insured with the second
respondent in the claim petition. However, as the lorry was parked in a
manner endangering the other vehicle users, the Tribunal held that the
appellant insurance company has to pay 60% of the compensation to the
claimant and the remaining 40% is payable by the owner of the Van in which
the claimant and others travelled on the fateful day. As regards compensation,
the Tribunal awarded a total sum of Rs.2,23,000/- as compensation out of
which the Insurance Company was directed to pay 60% of the compensation
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
amount to the tune of Rs.1,33,800/- to the claimant. Claiming that the
compensation awarded by the Tribunal is meager and not in consonance with
the injuries sustained by him, the claimant is before this Court with this Civil
Miscellaneous Appeal seeking enhancement.
3. As per the averments in the claim petition, on 01.06.2015 at about
12.30 pm, the claimant and 6 others were travelling in the Van bearing
Registration No. TN 31 AA 8742 at Kallakurichi. At that time, the Tipper
lorry bearing Registration No. TN 28 Q 5618 belonging to the first respondent
and insured with the second respondent was proceeding in front of the Van.
While so, the driver of the lorry suddenly applied brake without any reason.
The driver of the Van was caught by unawares and hit the lorry. In the impact
the occupants of the Van have sustained grievance injuries. As far as the
claimant is concerned, he suffered left distal radius fracture comminuted from
clavical fracture, undisplaced acromial end and medial 1/3rd, Left 6th, 7th ribs
fracture and other grievious injuries all over the body. The claimant was
admitted in Government Hospital, Kallakurichi from where he was referred to
PIMS Hospital, Puducherry. For the injuries suffered by the claimant, he had
taken treatment for a period of 92 days from 01.06.2015 to 10.08.2015. During
the period of treatment, the claimant had undergone two surgeries on
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
04.06.2015 and 05.06.2015. According to the claimant, he was aged 55 years
at the time of accident and was working as Divisional Engineer in Bharat
Sanchar Nigam Limited and earning a sum of Rs.82,645/- per month.
Therefore, the claimant has filed the claim petition, claiming a sum of
Rs.75,00,000/- as compensation.
4. The Claim Petition was resisted by the second
respondent/Insurance Company by contending that the allegation that the lorry
was moving in front of the Van and the driver of the lorry applied sudden
brake is factually incorrect. In fact, at the time of accident, the lorry was
parked on the left side of the road and it was the driver of the Van, who drove
the vehicle in a rash and negligent manner and hit the stationary lorry. The
second respondent also denied the age, income and employment particular
furnished by the claimant and prayed for dismissal of the claim petition.
5. The Tribunal tried all the seven claim petitions filed by the
claimants, who are occupants of the Van at the time of accident, jointly and
common evidence was adduced. On behalf of the claimants, the respective
claimants have examined themselves as PWs 1 to 7 and Exs. P1 to P30 were
marked. On behalf of the respondents, the Driver of the Van was examined as
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
RW1 but no documentary evidence was marked. Exs. C1 to C5, which were
also marked as Exs. P1, P2, P3, P4 and P7, Wound Certificates, were marked
as Court Exhibits. On consideration of the above oral and documentary
evidence, the Tribunal concluded that as per Ex.P23, salary certificate, the
claimant was in receipt of Rs.46,418/- as net pay and his gross pay was
Rs.82,645/-. Further, as per Ex.P22, identity card issued to the employer of the
claimant, his age was 59 as on the date of accident. Further, by taking note of
the injuries suffered and the period of hospitalisation and Ex.,P5, Wound
Certificate, the Tribunal concluded that the claimant had suffered 46%
disability. On appreciation of these facts, the Tribunal awarded Rs.3,000/- per
percentage of disability and awarded Rs.1,38,000/- towards Disability. For
Pain and Suffering a sum of Rs.25,000/- was awarded. In all, the Tribunal
awarded a total sum of Rs.2,23,000/- as detailed below:-
Disability (Rs.3,000 X 46) Rs.1,38,000.00
Pain and Suffering Rs. 25,000.00
Transportation Rs. 25,000.00
Extra Nourishment Rs. 15,000.00
Attendant Charges Rs. 20,000.00
-------------------
Rs.2,23,000.00
--------------------
6. Out of this amount, the Tribunal directed the second respondent
Insurance Company to pay 60% towards their liability of compensation to the
tune of Rs.1,33,800/- and the remaining 40% amount has to be recovered from
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
the owner of the Van.
7. As against the fixation of 60% liability on the Insurance
Company, they have not filed any appeal. It is the claimant who has filed the
present appeal seeking enhancement of compensation.
8. The learned counsel appearing for the appellant would contend
that the Tribunal, without regard to the period of treatment, the two surgeries
underwent by the claimant during hospitalisation and the loss of his earning
capacity, has awarded a very meager amount as compensation. The Tribunal
did not take note of the fact that the injuries suffered by the claimant are such
that he could not attend to his normal chores, as before. The Tribunal also did
not take into account that by virtue of the multiple fracture injuries suffered by
the claimant, he was subjected to acute pain and suffering at his advanced age.
It is also submitted that the accident occurred on 01.06.2015 and during the
period of his treatment, he reached the age of retirement on 31.08.2015 and
therefore, for the period during which he could not attend his work, the
Tribunal ought to have awarded some amount as compensation. The appellant
was constrained to take leave on account of the accident, otherwise, he would
not have taken leave. Therefore, the Tribunal ought to have awarded some
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
amount as compensation for the loss of income during the period of treatment.
In this context, the learned counsel for the appellant placed reliance on the
Judgment dated 27.07.2020 of the Apex Court in the case of (Erudhaya Priya
vs. State Express Transport Corporation Limited) (Civil Appeal Nos.
2811-2812 of 2020 arising out of SLP (C) Nos. 8495 to 8496 of 2018)
wherein it has been held as follows:-
"7 (b) Loss of earning capacity of the appellant
with permanent disability of 31.1%. In respect of the
aforesaid, the appellant has claimed compensation on what is
stated to be the settled principle set out in Jagdish v. Mohan
and others (2017) 16 SCc 680 and Sandeep Khanjua vs. Atul
Dande and another. We extract the principle set out in the
Jagdish case (supra) in para 8:
8. In assessing the compensation payable the settled
principles need to be borne in mind. A victim who suffers a
permanent or temporary disability occasioned by an accident is
entitled to the award of compensation. The award of
compensation must cover among others, the following aspects:
(i) Pain, suffering and trauma resulting from the
accident;
(ii) Loss of income including future income
(iii) The inability of the victim to lead a normal life
together with its amenities
(iv) medical expenses including those that the victim
may be required to undertake in future; and
(v) Loss of expectation of life.
The aforesaid principal has also been emphasised in an
earlier judgment, i.e., the Sandeep Khanjua case (supra)
opining that multiplier method was logically sound and legally
well established to quantify the loss of income as a result of
death or permanent disability suffered in an accident.
9. By citing the aforesaid decision, the the learned counsel for the
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
appellant submitted that the Tribunal failed to apply the ratio laid down by the
Hon'ble Supreme Court to award some amount towards compensation for the
loss of income during the period of treatment. Further, the appellant was
serving as Engineer in BSNL. Due to the accident that occurred on
01.06.2015 he could not attend to his employment and he reached the age of
retirement from service while he was taking treatment in the hospital. He had
suffered the following injuries:
Traumatic Subarachnoid hemorrhage, Diffuse axonal
injury, 2. Left distal radius fracture – communited fracture,
3. Left clavicle fracture – undisplaced acromial end and
medial 1/3 Left 6/7th ribs fracture with minimal
haemothorax, 4. Left compound communited zygoma
orbital floor and maxilla fracture and Left 5th cervical root
avulsion and Left C5,6/7 myotome weakness.
10. During the course of hospitalisation, the claimant underwent two
surgeries for the multiple fractures suffered by him. Further, after discharge
from the hospital, he could not carry on his day to day normal activities and
was made to depend others. These aspects have not been considered by the
Tribunal while awarding compensation to the appellant. In any event, the
amount of compensation awarded by the Tribunal is on the lower side and it
requires to be enhanced.
https://www.mhc.tn.gov.in/judis/
The learned counsel for the appellant further submitted that for
CMA No. 930/2020
the rest of his life, he is unable to carry on the regular work as before and
thereby he had lost his comfortable life. Further, the appellant has to take
future medical treatment for which no compensation has been awarded by the
Tribunal. In this context, the learned counsel for the appellant relied on the
decision in B.Anandhi Vs.R.Latha and another reported in 2002 ACJ 233,
wherein it was held as follows:-
“14. The Tribunal awarded a sum of Rs.25,000
for transport expenses in future which we confirm taking
into consideration the disability sustained by the
claimant. The Tribunal also awarded a sum of
Rs.1,00,000 towards pain and suffering. The evidence of
PW9 shows that iron rods were affixed by operation and
that nerves were not working in good condition. The
petitioner was given disability certificate to the extent of
55 per cent under Exh.P-34. Of course, the claimant
underwent operation and suffering. But, the
compensation of Rs.1,00,000 towards pain and suffering
is on the higher side and accordingly, we reduce it to
Rs.75,000/-
30. The petitioner was aged 22 years. She has
lost her matrimonial life. So, the award of Rs.1,00,000
given in this aspect is confirmed. For the disability
sustained by the petitioner, future medical expenses had
necessarily to be incurred since it is a continuing
permanent disability. Accordingly, we confirm the award
of Rs.1,00,000 awarded by the Tribunal towards future
medical expenses. On the whole, we confirm the award
amount of Rs.30,65,000 fixed by the Tribunal. ”
12. The learned counsel for the Insurance Company had objected to
the submissions of the learned counsel for the appellant stating that even
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
though the appellant suffered multiple fractures or partial permanent disability,
it had not affected his livelihood. The appellant was in Government service
and for the period during which he had taken treatment, he received salary
from his employer. The appellant, in effect, was on medical leave and for
which period he had received salary. Even otherwise, few months after the
accident, the appellant reached the age of retirement. Therefore also, the
accident suffered by the appellant has not in any manner affected his
livelihood. Taking note of all the above, the Tribunal has awarded a just and
fair compensation over which interference of this Court is not warranted.
13. We have heard the counsel for both sides and perused the
materials placed on record. It is an admitted fact that the claimant was
working in one of the Government Departments. It is also seen that on
01.06.2105, the appellant suffered injuries in the accident and on 31.08.2015,
he was due to retire. He had taken treatment from 01.06.2015 to 10.08.2015 in
a private hospital at Pondicherry. After his discharge, he re-joined duty and
within a few days, he retired from service on 31.08.2015. However, due to the
injuries suffered, he could not take up any other assignment after his
retirement. Had he not suffered any injuries in the accident, he could have
taken up some employment even after his retirement, but he was deprived of it.
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
Further, the appellant had held the post of Sub-Divisional Engineer in Bharat
Sanchar Nigam Limited and he would have had the potentiality to earn some
amount post-retirement. Therefore, for the loss of future earning capacity, we
are of the view that a even if a sum of Rs.10,000/- per month is assessed as
post-retirement earning, the appellant is entitled for a sum of Rs.5,00,000/- per
month by assuming that he would have taken up such assignment atleast for a
period of four years after his retirement. This was not considered by the
Tribunal while passing the award.
14. At the same time, we are also of the view that the Tribunal has
awarded, rightly, a sum of Rs.3,000/- per percentage of disability for 46% of
disability suffered by the claimant. Thus, the sum of Rs.1,38,000/- awarded by
the Tribunal, in our opinion, is a just and fair compensation, over which, we
decline to interfere.
15. The appellant was hospitalised from 01.06.2015 till 10.08.2015
for a period of 92 days as an in-patient and during the course of such
treatment, he had undergone two surgeries. At the time of accident, the
appellant was 59 years old and he was about to retire from his employment.
Having regard to the above, we are of the view that the amount awarded by the
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
Tribunal under the heads of Transportation, Extra Nourishment, Pain and
Suffering and Attendant charges and required to be enhanced as they are not
proportionate to the nature of injuries suffered by the claimant. Further, we
have noticed that the Tribunal ought to have awarded some amount towards
loss of amenities and future medical expenses, but it was not awarded. Having
regard to the above, we re-determine the award passed by the Tribunal as
follows:-
Disability (Rs.3,000 X 46) Rs. 1,38,000.00
Loss of future earning capacity Rs. 5,00,000.00
Pain and Suffering Rs. 1,00,000.00
Transportation Rs. 50,000.00
Extra Nourishment Rs. 50,000.00
Attendant Charges Rs. 50,000.00
Loss of Amenities Rs. 1,00,000.00
Future medical expenses Rs. 1,00,000.00
-------------------
Rs.10,88,000.00
--------------------
16. Out of this amount, the the second respondent Insurance
Company is directed to pay 60% towards their liability of compensation and
the remaining 40% amount has to be recovered from the owner of the Van.
17. With the above modification, the Civil Miscellaneous Appeal is
partly allowed. No costs. The Second respondent-Insurance Company is
directed to deposit the enhanced compensation now determined by us in this
appeal with interest at the rate of 7.5% per annum from the date of claim
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
petition till the date of deposit, within a period of eight weeks from the date of
receipt of a copy of this judgment. On such deposit, the claimant is permitted
to withdraw the compensation amount now determined in this amount. The
appellant is also directed to pay the court fee for the enhanced compensation
amount.
(R.P.S.J.,) (S.S.K.J.,)
19.01.2021
dsa/rsh
Index : Yes / No
Internet : Yes / No
To
The Motor Accident Claims Tribunal/
Special Sub-Ordinate Court,
Cuddalore.
https://www.mhc.tn.gov.in/judis/
CMA No. 930/2020
R.SUBBIAH,J.
and
SATHI KUMAR SUKUMARA KURUP,J.
dsa/rsh
C.M.A. No.930 of 2020
19.01.2021
https://www.mhc.tn.gov.in/judis/
